Judgment

MAHAJAN, C.J.I.

These are two connected appeals by special leave against an order of the Judicial Commissioner, Himachal Pradesh, dated the 26th December 1951, rejecting two applications for the issue of writ of mandamus and cretiorari under Article 226 of the Constitution.

2. The facts giving rise to the two petitions out of which these two connected appeals arise are these :

One Trilok Nath was running a business in Himachal Pradesh under the name and style of "Himachal Drug Nurseries" for the extraction., collection and export of medicinal herbs in the year 1949, he was a partner of Messrs. Prabhu Dayal and Gowri Shanker of Jammu and Kashmir State in timber business carried on in that State under the name and style of "The Kashmir Woods". It was alleged by him that the business in Chamba was his exclusive business with which the partnership firm "The Kashmir woods" had no concern whatsoever.

Prabhu Dayal s case was that the firm "The Kashmir Woods" was started by him in 1943 as his sole propertary concern, that later on he took Trilok Nath Mahajan as a partner in this concern, that in the year 1949 Sardar Bhagwan Singh induced the partners of this firm to take up the line of crude drugs and herbs which was his line, that a new firm "Himachal Drug Nurseries" was stated as a child concern of "The Kashmir Woods" with Bhagwan Singh as one of the partners, that after preliminary investigation it was decided to take up this work at Chamba and in pursuance of this decision two leases of two forest divisions were taken on behalf of the Jammu firm, one in the name of Bhagwan Singh and another in the name of Trilok Nath but the finance for this undertaking was supplied by the parent firm at Jammu. It was alleged that subsequently Trilok Nath manupualted the Jammu books showing a bogus investment of his elder brother Wazir Chand amounting to Rs. 30,000 in the firm "Kashmir Woods" and that fraudulently and by manipulating the books and by entering into certain agreements Trilok Nath made Wazir Chand the sole owner of "Himachal Drug Nurseries" and transferred the Chamba concern to him without the knowledge of the other partners.

These assertions were not accepted by Wazir Chand or Triok Nath. Their case was, the Trilok Nath was the sole owner of the Chamba concern, that he obtained the leases in his own name and not for the Jammu firm from the Chamba, forest department, first in the year 1949, and then in the year 1950, that as he had no capital of his own, he borrowed a sum of Rs. 30,000 from his brother and made him a partner with him in this business and that as later on he was unable to contribute his share of the capital, the partnership was dissolved on 31st August 1950, and in consideration of a sum of Rs. 20,000 he, Trilok Nath, relinquished and transferred by means of a stamped deed of dissolution made on 10th December 1950 all his rights in the Chamba concern to Wazir Chand who thus became the sole owner of all the goods belonging to this concern in Chamba and came into possession of the same.

3. On the 3rd April 1951, Prabhu Dayal lodged a report with the police at Jammu that Trilok nath had prepared duplicate accounts for production before the income-tax authorities, and that he had committed an offence of embezzlement under section 406 of the Indian Penal Code. The Jammu and Kashmir State police took cognizance of the case and appointed Amar Nath, sub-inspector of Police, to make investigation.

During the investigation the Jammu Police came to Chamba on 25th and 26 th April 1951 and with the assistance of the Chamba police seized 289 bags of medicinal herbs worth about Rs. 35,000 and in actual physical possession of Wazir Chand or his men without reporting to, or obtaining orders from, any magistrate or any other competent authority. The goods were handed over to different superdars at different station in the State of Himachal Pradesh.

Wazir Chand vehemently protested against these seizures alleging that the action ta